MC0-08798

RAD File / Dossier de la SAR : MC0-08798 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision May 13, 2021 Date de la décision Panel Laura Ko Tribunal Counsel for the person who is the subject of the appeal Olubankole Kaffo Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (a.k.a. XXXX XXXX XXXX) (Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant alleges that she faces persecution in Nigeria as a bisexual woman. She also fears future harm at the hands of her spouse in Nigeria who physically abused her. She fears that her spouse and his family will subject their two daughters who continue to live in Nigeria to female genital mutilation (FGM) and will target the Appellant for future mistreatment for failing to give birth to a male child and for having an affair with a woman while married. [2] The determinative issue before the RPD was credibility. The RPD found that the Appellant was not credible, citing important contradictions regarding the core allegations of her claim. The RPD found that the Appellant did not establish that she was bisexual or a lesbian. It found that her allegations of persecution due to her sexual orientation were not credible. The RPD also found that the Appellant was not credible due to contradictions regarding the status of her relationship with the agent of persecution (her spouse), the power and connections of her spouse, and the fear for her daughters, which it found were not reasonably explained. The RPD found that the Appellant had not, on a balance of probabilities, established her core allegations and rejected her refugee claim. [3] On appeal, the Appellant argues that the RPD failed to appreciate the evidence in totality and based its decision on insignificant facts, therefore making an erroneous finding of credibility without any factual basis to do so. The Appellant also argues that the RPD failed to properly evaluate the documentary evidence submitted in support of her claim and failed to provide adequate reasons for determining that the probative value of the documents did not outweigh the contradictions in the Appellant's evidence which were not reasonably explained. [4] The appeal is allowed. I send this matter back to the RPD to be redetermined. I find that the RPD erred in certain determinations regarding the Appellant's credibility. I also find that the RPD erred in failing to adequately explain its reasoning in its assessment of the documentary evidence submitted by the Appellant in support of her claim. Decision regarding redetermination [5] Section 111(1) of the Immigration and Refugee Protection Act1 (IRPA) allows me to: a) confirm the determination of the RPD; b) set aside a decision of the RPD and substitute a determination that, in my opinion, should have been made; or c) refer the matter back to the RPD, giving the directions to the RPD that I consider appropriate. [6] I can make the referral described in 111(1)(c) only if I am of the opinion that the decision of the RPD was wrong in law, in fact, or in mixed law and fact, and if I cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.2 [7] I find that I cannot substitute my own determination as there remain some outstanding credibility concerns that must be addressed in consideration of the documentary evidence. As the RPD did not question the Appellant on some of the documentary evidence submitted to corroborate her allegations of persecution, these documents are left untested. In light of the outstanding concerns regarding credibility, a proper determination of credibility cannot be made in this appeal without hearing evidence on the documents submitted to the RPD by the Appellant. [8] As such, the matter is referred back to the RPD for redetermination by a differently constituted panel. NEW EVIDENCE The evidence presented by the Appellant is rejected [9] According to the law,3 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.4 [11] The Appellant has not completed a written statement concerning new evidence at the Refugee Appeal Division (RAD).5 The statement document included in the Appeal Record is blank. The Appellant also does not indicate in her Appellant's Memorandum that she is seeking to have new evidence admitted on appeal.6 However, I note that the Appellant has included photographs with her Appeal Record. Some of these photographs are larger, colour versions of those that were before in the RPD in Exhibit D-1, but some of them are different. [12] As the Appellant has not asked to have the photographs that were included with the Appeal Record considered as evidence under section 110(4) of the IRPA and does not explain how they would meet the criteria of section 110(4) or Singh/Raza,7 I reject the photographs that were not already entered evidence before the RPD. These include the photographs at pages 34, 35, 36, and 39 of the Appeal Record. [13] The Appellant does not request an oral hearing, nor do I find that the criteria for an oral hearing set out in section 110(6) of the IRPA are met,8 as no new evidence has been admitted. ANALYSIS [14] My role is to look at all the evidence and decide if the RPD made the correct decision.9 In deciding this appeal, I have taken into consideration the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution as well as the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline).10 [15] The determinative issues on appeal are whether the RPD erred in its treatment of the documentary evidence and whether the RPD erred in its assessment of the Appellant's credibility. Having reviewed the transcript of the RPD hearing, listened to the audio recording of the RPD hearing, and having conducted my own independent analysis of the evidence, I find that the RPD did err in its consideration of both of these issues. The RPD erred in its treatment of the documentary evidence Photographs and Medical Reports [16] The Appellant submitted a number of photographs that were entered as Exhibit D-1 before the RPD and medical reports from Nigeria that were entered as Exhibit D-3 and D-4. The Appellant alleges that the photographs and medical reports are evidence of the domestic violence she suffered at the hands of her spouse. At the hearing, neither the RPD nor the Minister who intervened asked any questions to the Appellant about the photographs or the events that led to the physical injuries documented in the photographs. Some questions were asked about the medical report dated XXXX XXXX, 2018 in Exhibit D-3. In its decision, the RPD acknowledged that the Appellant produced a number of documents,11 but does not assess the documents individually other than the medical report from XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX) de XXXX XXXX XXXX XXXX XXXX XXXX The RPD stated that it reviewed and considered the exhibits and found that the exhibits "do not address the credibility concerns and are not adequate in themselves, or in conjunction with the contradictory testimony, to establish the core allegations."12 The RPD conceded in its reasons that the documents appear to be authentic but found that "the probative value of the documents does not outweigh the important contradictions and lack of reasonable explanations, which undermined the credibility of the Claimant."13 In other words, the RPD did not believe the Appellant's allegation of domestic abuse. [17] I find that the RPD erred in failing to explain how the RPD Member considered the photographs of the Appellant's physical injuries or the medical reports from Nigeria. The RPD had an obligation to assess the corroborative evidence presented before reaching an adverse credibility finding.14 Given that neither the RPD nor the Minister who intervened at the RPD asked any questions of the Appellant regarding the photographs, and given that the RPD did not address in its reasons why it found that the photographs and medical reports did not support the Appellant's allegation of domestic abuse, it is not evident from the RPD's reasons that it did in fact assess the corroborative evidence before it. While a decision-maker is presumed to have weighed and considered all the evidence presented to it, if the tribunal is silent on evidence clearly pointing to an opposite conclusion, it may be inferred that the contradictory evidence was overlooked.15 [18] The failure of the RPD to properly explain its assessment of the documentary evidence may not have been fatal to its decision had it not found that the Appellant had failed to credibly establish her allegations of persecution through her oral testimony. There is a presumption of truthfulness when a claimant has sworn to the truth of their allegations unless there are valid reasons to doubt their truthfulness.16 It follows that if the claimant's account is uncontradicted and credible, there is no legal requirement to provide independent evidence to corroborate the claimant's sworn testimony.17 [19] The RPD found, however, that the Appellant was not credible due to contradictions regarding the core allegations of her claim including her allegation of physical abuse which resulted in physical injuries and two miscarriages. The existence of contradictions that are not reasonably explained may suffice to rebut the presumption of truthfulness. However, as explained above, the RPD was obligated to assess the documentary evidence before reaching a conclusion on the credibility of the Appellant's evidence. [20] In terms of my own independent assessment of the photographs in Exhibit D-1, I have considered that the Appellant's evidence and written submissions before the RPD, as well as the Appeal Memorandum, do not indicate when the pictures were taken, the details of the circumstances that led to the physical injuries, how and why the photographs were taken, or how they were obtained by the Appellant. Without answers to these questions, I cannot properly assess the evidence in order to substitute my own findings for those of the RPD. Membership in a lesbian, gay, bisexual, trans, and queer (LGBTQ) social media group [21] I find that the RPD erred in a similar regard with respect to the Appellant's evidence entered in Exhibit D-2. The exhibit consists of three pages from a social media site, which indicates that "XXXX XXXX" is a member of a group called "XXXX XXXX XXXX we have rights too". The documents state that XXXX XXXX joined the social media group in XXXX 2011. The Appellant testified that she uses the name XXXX XXXX as her social media profile name. [22] The RPD did not question the authenticity of the evidence but found that it did not outweigh the important contradictions and lack of reasonable explanations of the Appellant. The RPD found that the Appellant failed to establish that she was bisexual or a lesbian. The RPD and the Minister did not question the Appellant regarding the evidence of her membership in the online group for the LGBTQ community and the RPD does not explain in its reasons why it found that the evidence lacked sufficient probative value to be considered as corroborative evidence of the Appellant's sexual orientation. [23] The record before me does not indicate how or why the Appellant came to join the XXXX XXXX XXXX social media group in 2011 or what the purpose or nature of the group is. Without answers to these questions, I cannot properly assess the evidence in order to substitute my own findings for those of the RPD. The RPD erred in its assessment of credibility [24] Aside from the errors regarding the treatment of the documentary evidence, I find that the RPD also erred in some aspects of its assessment of the credibility of the Appellant's evidence. Sexual orientation [25] The RPD found that the Appellant did not establish that she is bisexual or a lesbian. The RPD's determination was based on a number of perceived inconsistencies in the Appellant's testimony and between the Appellant's testimony at the hearing and her Basis of Claim (BOC) form narrative and update. The RPD found that the Appellant presented three contradictory versions of her sexual orientation: (1) She was a lesbian who had realized her sexual orientation in high school and only married due to being forced to do so, only having sexual relations with her husband to have children; (2) She was bisexual prior to her marriage and resumed intimate relations with women after her husband rejected her; (3) She became bisexual after her marriage due to her husband rejecting her, because he had denied her sexual pleasure. [26] In her original BOC form narrative, the Appellant stated that she "became bisexual so as to ease [her]self of demand of sexual pleasure and have the needed sexual companion."18 She stated that she became "a bisexual, an act [she] wont ordinarily venture into had [her] husband been performing his matrimonial duties to [her] sex wise."19 In her BOC form narrative update, the Appellant stated that "besides the fact that [her] husband pushed [her] back into bisexualism again [she] had been a bisexual all the while."20 [27] At the RPD hearing, the Appellant testified that when she was in high school, she was a lesbian.21 She described having a partner and that one day her sister discovered her and her partner kissing while naked in bed. The sister reported this to the Appellant's parents. The Appellant testified that when she was 23 years old, her parents sat her down and said that she had to get married. They arranged for her to marry one of her father's friends. The Appellant testified that because she was married to a man and the man has slept with her, she cannot call herself a lesbian and so used the word bisexual to describe those circumstances.22 The Appellant explained circumstances when her husband abandoned her emotionally and sexually, when he was physically assaulting her and sleeping with other women.23 The Appellant stated in her BOC form narrative that at times she begged her husband to have sex with her, but that he often denied her sex but slept with other women.24 The Appellant testified that she had the opportunity to go outside and make friends again and met female partners with whom she had sexual relationships. The Appellant used the term "bisexual" to describe her sexual orientation during this period of time. The Appellant described her present sexual orientation as lesbian, not bisexual, meaning that she was not interested in men and was only interested in women.25 [28] The RPD asked a number of questions during the hearing regarding the Appellant's use of the terms "bisexual" and "lesbian" and why the Appellant sometimes referred to herself as bisexual and sometimes as lesbian. The RPD found that the Appellant did not reasonably resolve the contradictions in her evidence regarding her sexual orientation, finding that the Appellant was creating further contradictions throughout her testimony that only served to undermine her credibility. The RPD found that the Appellant failed to establish, on a balance of probabilities, that she is bisexual or a lesbian. It concluded that her allegations with respect to the persecution she faces regarding her sexual orientation are not credible. [29] The Appellant argues that the RPD placed undue consideration on the dates when she became bisexual. The Appellant argues that the RPD should have considered the substance of her allegations rather than the dates when she became bisexual and should have but did not review the substance of her allegations. [30] I agree with the Appellant that the RPD placed undue consideration on the terminology used by the Appellant rather than assessing the substance of her evidence regarding her sexual orientation. I find that this was an error. The SOGIE Guidelines note that a person's understanding of their sexual orientation may change and there is no standard terminology that adequately captures the diversity within and between the evolving concepts of sexual orientation and gender identity and expression across cultures and societies.26 The Appellant explained in her testimony the way in which her sexual orientation evolved: from interest in and sexual relationships with women in high school, to forced marriage to a man, to engaging in sex with her husband and wanting to have sex with him in order to have children, to returning to sexual relationships with women when her husband abandoned her emotionally and sexually, to her present interest only in women. It was incumbent on the RPD to assess her evidence based on its substance, rather than the labels attached to her sexual orientation. It is not evident from the RPD's reasons that this was done. [31] The SOGIE Guidelines also note that an individual's self-awareness and self-acceptance of their SOGIE may present as a gradual or non-linear process. There is no standard set of criteria that can be relied upon to establish an individual's identification as an individual with diverse SOGIE. Decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain any inconsistencies in the evidence. The reasons of the RPD do not indicate that the RPD took into consideration any cultural or legal barriers that the Appellant may have faced in expressing her sexual orientation in Nigeria that may have accounted for the way in which her sexual orientation was expressed or evolved. [32] While I find that the RPD erred in its assessment of the Appellant's sexual orientation, I find that I am unable to substitute a finding on this issue. There remain some inconsistencies and omissions in the Appellant's evidence that must be considered in an overall assessment of her credibility. For example, the Appellant's BOC form narrative and update do not make mention of the Appellant's sexual orientation prior to her marriage or that her marriage was forced upon her by her parents under threat that they would reveal her sexual orientation. An assessment of the Appellant's explanation for this omission should be taken into consideration along with the other factors. Similarly, the Appellant's statement in her BOC form narrative that she "became a bisexual"27 after her husband neglected her in their marriage is not consistent with her later narrative update that she had been bisexual "all the while"28 and her testimony that she considered herself to be bisexual as of the beginning of her marriage when she married and had sex with her husband.29 These inconsistencies and the Appellant's explanations should be considered collectively, with consideration for the SOGIE Guidelines and the documentary evidence regarding the LGBTQ social media group. Domestic Violence [33] The RPD found that the Appellant did not establish the allegation of domestic violence and forward-looking risk at the hands of her spouse. The RPD found that the Appellant was not credible in her evidence regarding the status of her relationship with her spouse, the power and connections of her spouse, and the fear for her daughters. [34] I agree with the Appellant's argument that the RPD erroneously based its assessment of the allegation of persecution on the marital status between the Appellant and her spouse. The RPD found that the Appellant was not consistent as to whether she and her spouse were married and whether there was a wedding. In my independent assessment of the evidence, I find that the Appellant was consistent in her evidence regarding her marital status. Furthermore, I find it was an error for the RPD to base its conclusion regarding the credibility of the Appellant's allegation of domestic violence on semantics regarding the relationship, rather than by assessing the circumstances as a whole. [35] The Appellant's evidence is consistent that her marriage to her spouse was a traditional marriage. She stated in her BOC form and testified at the RPD hearing that it was a traditional marriage in the sense that there was no wedding in a church, that there was no formal celebration, but that there was an agreement reached between the two families and that the marriage was considered to have commenced on XXXX XXXX, 2002 when the agreement was finalized and the Appellant moved into the home of her spouse. The Appellant testified that her spouse had promised they would have a church wedding later on, but that he did not keep this promise. The fact that the Appellant at times used the term "wedding" or "marriage" to describe the commencement of the traditional marital relationship does not mean that she was inconsistent in her description of the relationship. [36] The RPD found that the Appellant was also inconsistent when describing her marital status when she talked about filing for divorce. The RPD questioned why she would need a divorce if her marriage was not officially recognized. The Appellant explained that there are different divorce proceedings that must be followed for traditional marriages and that these are done through a Customary Court as opposed to a High Court. The RPD found that the Appellant's response was contradictory and did not resolve the contradictions between her testimony and the BOC, but instead created further contradictions. [37] I find that the RPD erred in its analysis and came to its conclusion in disregard of the objectively documentary evidence in the National Documentation Package (NDP) for Nigeria, which the RPD had in evidence before it. The evidence in the NDP states that there are multiple marital regimes in Nigeria (civil, customary, and Islamic) that operate in parallel.30 The evidence also states that even though Christian marriages are generally assumed to be governed by the Matrimonial Causes Act of 1970, most Christian women, including the majority of urban women and those living in the higher socio-economic strata of Nigerian society, also marry under customary law.31 The documentary evidence states that for a marriage under customary law, a divorce is generally passed through a family or clan head, or a customary court and that a judicial (versus non-judicial) dissolution of the marriage is granted by a customary court or magistrate court.32 The RPD did not refer to the NDP in its assessment of the Appellant's credibility regarding her marital status. [38] In my independent assessment of the evidence, I find that the Appellant's evidence was internally consistent and is consistent with the country of origin information regarding traditional marriages and divorce in Nigeria. [39] Having determined that the Appellant was not credible regarding her marital status, the RPD disregarded her allegation that she was physically abused during this relationship. Although the Appellant provided evidence regarding multiple instances of physical violence against her, including the physical injuries to her face and head documented in the photographs in Exhibit D-1 and her evidence that assaults perpetrated by her husband resulted in two miscarriages, the RPD focussed on the fact that the Appellant alleged that the violence started "not too long after the wedding" and the perceived contradictions about whether there was a wedding.33 The RPD erroneously concluded that there were inconsistencies in the Appellant's evidence as to whether there was a "wedding", and then relied on this finding to conclude that the Appellant was also not credible regarding her allegations of domestic abuse since the incidents occurred after the "wedding". [40] I find that it was an error for the RPD to not assess the substance of the Appellant's allegation of domestic violence due to its findings surrounding the use of the word "wedding" and "marriage". However, I find that I am unable to substitute my own finding regarding the Appellant's allegation of forward-looking risk, as there are some other inconsistencies that will need to be addressed in the context of the evidence as a whole, including the documentary evidence which I have already determined must be put to the Appellant in a hearing. The other inconsistences include that the Appellant provided two different orders of the events that led to the miscarriages and that when testifying regarding the first incident of domestic violence, the Appellant first testified that she could not remember when it happened, then said it was not too long after moving into her spouse's home, then stated that it happened the very night that she moved in. These inconsistencies and the Appellant's explanations will need to be considered in the context of a complete assessment of the evidence, including the documentary evidence that was not previously addressed by the RPD. Additional Credibility Findings by the RPD [41] The RPD made additional credibility findings regarding the Appellant's evidence regarding the power and connections of her spouse due to his involvement with the Ogboni Fraternity and regarding the Appellant's fear for her daughters. [42] Given my findings regarding the determinative issues surrounding the treatment of the documentary evidence and the assessment of credibility regarding the Appellant's sexual orientation and allegation of domestic violence, I do not find it necessary to address the other findings of the RPD. [43] I find that the errors regarding the documentary evidence and credibility are determinative of this appeal. I find that I cannot substitute a positive decision due to certain areas of concern discussed above that require the hearing of evidence presented to the RPD. As a result, the appeal is allowed and the matter is referred back to the RPD for redetermination by a differently constituted panel. CONCLUSION [44] The appeal is allowed. I send this matter back to the RPD to be redetermined. (signed) Laura Ko Laura Ko May 13, 2021 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 111(1). 2 IRPA, section 111(2). 3 IRPA, section 110(4). 4 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 5 Exhibit P-2, Appellant's Record, Written Statement Concerning New Evidence, at p. 2. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum section 3.1, at p. 7. 7 Supra, at endnote 4. 8 IRPA, section 110(6). 9 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 10 Immigration and Refugee Board of Canada (IRB), Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996; Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the IRPA, May 1, 2017. 11 Exhibit RPD-1, RPD Record, Exhibits D-1 through D-7, at pp. 134-155. 12 Exhibit RPD-1, RPD Record, RPD Decision, at p. 13, para. 54. 13 Ibid., at p. 14, para. 55. 14 Mohamed v. Canada (Citizenship and Immigration), 2020 FC 1145, at para 65; Chen v Canada (Citizenship and Immigration), 2013 FC 311, at paras. 19-21; Yu v Canada (Citizenship and Immigration), 2015 FC 1138, at paras. 34-35. 15 Ifeanyi v. Canada (Citizenship and Immigration), 2018 FC 419, at para. 31 16 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 17 Ahortor v. Canada (Minister of Employment and Immigration), (1993), 65 FTR 137 (Fed TD); Triana Aguirre v. Canada (Citizenship and Immigration), 2008 FC 571. 18 Exhibit RPD-1, RPD Record, Basis of Claim (BOC) form narrative, at p. 29. 19 Ibid., at p. 30. 20 Exhibit RPD-1, RPD Record, BOC narrative updated, at p. 16. 21 Transcript of RPD Hearing on January 28, 2020, at p. 7. 22 Ibid., at p. 11. 23 Ibid., at p. 13. 24 Exhibit RPD-1, RPD Record, BOC form narrative, at p. 28. 25 Transcript of RPD Hearing on January 28, 2020, at p. 11. 26 Supra, at endnote 10, SOGIE Guideline, paras. 2.5-2.6. 27 Exhibit RPD-1, RPD Record, BOC form narrative, at p. 30. 28 Exhibit RPD-1, RPD Record, BOC narrative updated, p. 16 29 Transcript of RPD Hearing on January 28, 2020, at p. 11. 30 Exhibit RAD-1, National Documentation Package (NDP) for Nigeria (April 16, 2021), item 5.1: Nigeria. Social Institutions and Gender Index 2019, Organisation for Economic Co-operation and Development, at p. 2; NDP for Nigeria (April 16, 2021), item 5.5: Divorce law and practices among Christians, including grounds, procedures, length of process, property dispositions, child custody and consequences for the woman and her family, IRB, at p. 1. Items 5.1 and 5.5 are also found in the NDP for Nigeria (November 29, 2019). 31 Ibid., NDP item 5.5, at p. 2. 32 Ibid., NDP item 5.5. at p. 6. 33 Exhibit RPD-1, RPD Record, RPD Decision, at p. 9, para. 34. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC0-08798 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français